Australia and New Zealand Banking Group Limited v Australian Securities and Investments Commission [2024] FCAFC 128

FEDERAL COURT OF AUSTRALIA Australia and New Zealand Banking Group Limited v Australian Securities and Investments Commission [2024] FCAFC 128 Appeal from: Australian Securities and Investments Commission v Australia and New Zealand Banking Group Limited (No 2) [2023] FCA 1217

File number(s): VID 1067 of 2023

Judgment of: MARKOVIC, LEE AND BUTTON JJ

Date of judgment: 2 October 2024

Catchwords: CORPORATIONS – breach of continuous disclosure obligations under s 674(2) of the Corporations Act 2001 (Cth) – whether primary judge erred in finding the pleaded information fell within s 677 of the Act by failing to construe and apply correctly the words "persons who commonly invest in securities" – whether primary judge erred in finding the pleaded information was material within the meaning of s 677 of the Act by failing properly to consider additional context – whether primary judge had proper regard to what the appellant knew and understood when assessing materiality – whether the pleaded information fell within Rule 3.1 of the ASX Listing Rules, being the relevant listing rules of the listing market for the purposes of s 674 of the Act – appeal dismissed

Legislation: Corporations Act 2001 (Cth) ss 9, 674, 676, 677, 1317G Corporations Law (Cth) s 1001A

Australian Securities and Investments Commission (ASIC) v Citigroup Global Markets Australia Pty Ltd (No 4) [2007] FCA 963; (2007) 160 FCR 35 Australian Securities and Investments Commission (ASIC) v Fortescue Metals Group Ltd (No 5) [2009] FCA 1586; (2009) 264 ALR 201 Australian Securities and Investments Commission v Australia and New Zealand Banking Group Limited (No 3) [2023] FCA 1565 Australian Securities and Investments Commission v Fortescue Metals Group Ltd [2011] FCAFC 19; (2011) 190 FCR 364 Australian Securities and Investments Commission v GetSwift Limited (Liability Hearing) [2021] FCA 1384 Australian Securities and Investments Commission v Vocation (in liq) [2019] FCA 807; (2019) 371 ALR 155 Australian Securities and Investments Commission v Wilson (No 3) [2023] FCA 1009 Banque Commerciale SA, En Liquidation v Akhil Holdings Limited (1990) 169 CLR 279 Basic, Inc. v. Levinson, 485 U.S. 224 (1988) Bert v Red 5 Limited [2016] QSC 302; (2016) 349 ALR 210 Crowley v Worley Ltd (2022) 293 FCR 438; [2022] FCAFC 33 Cases cited: Cruickshank v Australian Securities and Investments Commission [2022] FCAFC 128; (2022) 292 FCR 627 Forrest v Australian Securities and Investments Commission [2012] HCA 39; (2012) 247 CLR 486 Grant-Taylor v Babcock & Brown Limited (In Liquidation) [2015] FCA 149; (2015) 104 ACSR 195 Grant-Taylor v Babcock & Brown Ltd (in liq) [2016] FCAFC 60; (2016) 245 FCR 402 James Hardie Industries NV v Australian Securities and Investments Commission [2010] NSWCA 332; (2010) 274 ALR 85 Jubilee Mines NL v Riley [2009] WASCA 62; (2009) 40 WAR 299 Masters v Lombe (Liquidator); In the Matter of Babcock & Brown Limited (in liq) [2019] FCA 1720 Matrixx Initiatives, Inc. v. Siracusano, 563 U.S. 27 (2011) McFarlane as Trustee for the S McFarlane Superannuation Fund v Insignia Financial Ltd [2023] FCA 1628 National Australia Bank Limited v Pathway Investments Pty Ltd [2012] VSCA 168; (2012) 265 FLR 247 TPT Patrol Pty Ltd, as trustee for Amies Superannuation Fund v Myer Holdings Limited [2019] FCA 1747; (2019) 140 ACSR 38 Zonia Holdings Pty Ltd v Commonwealth Bank of Australia Limited (No 5) [2024] FCA 477 Zonia Holdings Pty Ltd v Commonwealth Bank of Australia Limited [2018] FCA 659